*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 10 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANNY JOE McMEEKAN,

Petitioner - Appellant, No. 98-6247

v. (W.D. Oklahoma)

KEN KLINGER,

Respondent - Appellee.

(D.C. No. CIV-98-463-L)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

Danny Joe McMeekan, an Oklahoma state prisoner appearing pro se,

seeks a certificate of appealability to appeal the district court’s dismissal of his 28
1We note that 28 U.S.C. § 1915(a)(2) and (b) do not apply to § 2254

proceedings. United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997). 

2Apparently, McMeekan has now completed the three year term of

imprisonment for his original offense, petit larceny. See Order Affirming Denial

of Post-Conviction Relief (Okla. Crim. App.), R. Vol. I, Doc. 1, Exh. at 1.

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U.S.C. § 2254 habeas petition. McMeekan also seeks leave to appeal in forma

pauperis.1

 We grant leave to proceed in forma pauperis; we grant a certificate of

appealability; and we affirm in part, reverse in part and remand for further

proceedings. 

On March 8, 1996, McMeekan pleaded guilty to possession of marijuana

and to escape,2 and he was sentenced to seven years’ imprisonment on each

conviction. Although he did not directly appeal, he eventually initiated state

court post-conviction proceedings, based upon a claim to relief which “rest[ed]

entirely upon an argument that he [was] being denied equal protection,” in that he

had received a harsher sentence than similarly situated persons who would be

sentenced under Oklahoma’s newly enacted Truth In Sentencing Act, 1997 Okla.

Sess. Laws ch. 133. R. Vol. I, Doc. 1, Exh. at 2. On February 5, 1998, the

Oklahoma Court of Criminal Appeals affirmed the state district court’s denial of

McMeekan’s petition. Id., Doc. 1, Exh. 

Following the adverse state court decision, McMeekan filed a § 2254

petition in federal court in the Western District of Oklahoma, and the case was
3The magistrate judge noted that although McMeekan was incarcerated in

the Western District, he had been tried in the Northern District of Oklahoma. 

Thus, the court’s ordinary practice would be to transfer the case–however, since

the petition made no cognizable claims, transfer was unnecessary. R. Vol. I, Doc.

3 at 2. 

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referred to a magistrate judge.3 Noting that McMeekan’s petition grounds

consisted of a single paragraph “which is a copy of a pleading being presented to

this Court by several Oklahoma prisoners,” and that the “specific allegations of

his claims are unclear,” id., Doc. 3 at 4, nonetheless, the magistrate broadly

construed the petition to claim both that McMeekan’s sentence should be

recalculated under the new provisions, and that failure to do so constituted a

denial of equal protection. Id., Doc. 3 at 3-4. After a thorough analysis of the

state court proceedings and McMeekan’s apparent claims, the magistrate judge

recommended that the petition be dismissed. Id., Doc. 3 at 8.

McMeekan then filed timely objections, in which, for the first time, he

raised a claimed Ex Post Facto Clause violation because the new Truth in

Sentencing Act eliminated two early release programs for which he claimed

qualification. Id., Doc. 4 at 2. Reciting its “careful review of plaintiff’s

objections to the Report and Recommendation, and upon de novo review of the

file,” the district court found the objections “insufficient to overcome the

conclusions of the Magistrate Judge” which the district court adopted. Id., Doc.

5.
4Because the district court apparently considered the ex post facto argument

on the merits, we consider it properly before us in this appeal.

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As to those issues which the magistrate judge considered, we find that

McMeekan has failed to make a substantial showing of the denial of a

constitutional right, and therefore we decline to issue a certificate of

appealability. However, we reach a different conclusion on the claimed violation

of the Ex Post Facto Clause.4 As we previously indicated in an appeal that raised

the identical question, Blue v. Klinger, No. 98-6159. 1998 WL 738341 (W.D.

Okla. Oct. 22, 1998) (unpublished), “to the extent [petitioner] is asserting the

Act’s elimination of pre-parole and early release programs violates the Ex Post

Facto Clause,” the claim presents a substantial showing of the denial of a

constitutional right which requires case-specific consideration. Id. at *2 (citing

Lynce v. Mathis, 519 U.S. 433 (1997), Weaver v. Graham, 450 U.S. 24, 28

(1981), and Raymer v. Enright, 113 F.3d 171, 174 (10th Cir.), cert. denied, 118 S.

Ct. 188 (1997)). 

Accordingly, we GRANT McMeekan’s application to proceed in forma

pauperis. Because he has made a substantial showing of the denial of a

constitutional right, we GRANT his request for a certificate of appealability. The

judgment of the district court is AFFIRMED in part and REVERSED in part, and

this matter is REMANDED for further proceedings consistent with this order.
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ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge